Civil Procedure – Fall 2010 – Professor McLaughlin
I. INTRODUCTION TO CIVIL PROCEDURE AND PRACTICE
A. JUSTICIABILITY
-Appropriateness of a case to be adjudicated by a court
Need two things:
1) Proper Litigants (stakeholders)
-Requires a real victim, not just two parties arguing about an issue
-Ex: a person who possibly has cancer from fluoridation rather than two sides merely arguing about whether it does cause cancer (Cudahy)
2) Proper Issue (worthiness)
-Not a sports game (Waddell)
B. HISTORICAL ORIGINS – ENGLISH COMMON LAW
1) Types of Courts
-Law – legal claims, legal relief
-King’s Bench: issues directly affecting the King
-Exchequer issues involving King’s debts
-Court of Common Please: civil disputes between subjects of King
-Chancery
-equitable relief
-seeking injunction or specific performance
ex: child support
-judge decides
2) Original Types of Actions in LAW Courts
-real action – rights to real property
-personal action – concerned with harm to person or personal property
3) Modified: Nine Common Law PERSONAL Forms of Action (Law Courts)
-Replevin: suit for return of goods wrongly distrained by another
-Detinue: suit for damages for wrongfully detained goods
-Debt: suit for a fixed sum of money due for any reason
-Account: suit for damages and the auditing of an account
-Covenant: suit for damages for a breach of contract executed under seal
-Assumpsit: suit for damages for breach of contract not executed under seal
-Trespass: suit for damages for direct intentional injury to person, land or chattel
-Ejectment: suit to settle tile to land and recovery of possession of land (began as real action but eventually became special form of Trespass)
-Trespass on the Case: suit for damages for negligence and certain non-physical torts (deceit, libel, slander)
-Trover: suit for damages for the loss of property and its conversion by another
4) Chancery Court Types of Actions
-P seeking injunction or specific performance as opposed to damages
-handled by Chancellorwhen relief could not be granted in LAW courts
5) Modern Rules of Civil Procedure
-Merger of Law and Equity courts
-single court system (few exceptions, DE)
-legal and equitable relief in a single proceeding
Distinctions between LAW and EQUITY Courts
LAW COURTS
EQUITY COURTS
Action initiated by:
Writ/Declaration
Bill in Equity
Matters handled:
Legal Actions
Legal Claims
Legal Relief
Equitable Actions
Equitable Claims
Equitable Relief
Types of Actions:
Nine Personal Forms of Action
(including Replevin and Ejectment)
1. Principal Equity Actions:
-Injunctions
-Specific Performance
2. Other types:
-Suit to Quiet Title
-Restitution
-Imposition of Constructive Trusts
Special Features:
1. Jury Tria
1) Types of Courts in NJ
-Supreme Court
-Superior Court
-other courts of limited jurisdiction (NJ Tax Court and the Municipal Courts)
-NOTE: administrative law courts are not part of the NJ Judicial Court System
-they are created by the Legislature and operate as part of executive branch
-decisions are appealed to administrative agency (Department of Education, Environment Protection, etc.), then to Superior Court, Appellate Division
2) Supreme Court
-1 Chief Justice, 6 Associate Justices
-Appellate Jurisdiction – appeals taken for:
-Cases raising a substantial issue of U.S. or N.J. constitutional law
-Cases in which there is a dissent in the Appellate Division
-Death penalty cases
-All other cases require a petition for certification – court has discretion to grant or deny based on importance of issue
-similar to U.S. Supreme Court’s petition for certiorari
-Supervisory Jurisdiction
-Authority to Promulgate the NJ Court Rules
-Congress has this authority, not the US Supreme Court, for Federal rules
-Authority to promulgate rules of bar admission, disciplinary, and professional conduct governing attorneys practicing in NJ
